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Marquette Review Volume 35 Article 3 Issue 1 Summer 1951

Sectional Representation on the Supreme Court Daniel S. McHargue

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Repository Citation Daniel S. McHargue, Sectional Representation on the Supreme Court, 35 Marq. L. Rev. 13 (1951). Available at: http://scholarship.law.marquette.edu/mulr/vol35/iss1/3

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. SECTIONAL REPRESENTATION ON THE SUPREME COURT DANIEL S. MCHARGUE* Despite the prominence of Texas and in American politics, neither state could point to one of its citizens as having been named to 's highest tribunal until President Truman named Tom Clark and to the Supreme Court.1 Thus for the first time in the course of some 120 nominations to the highest bench were these two states honored. It is therefore of interest to examine the extent to which Supreme Court membership has been representative of the states and sections of the country and to pose the question of sectional in- fluence in determining the Presidents' choices of Supreme Court per- sonnel. In our early history sectional representation was an important factor in naming men to the Supreme Court. President Washington wrote that, "In the appointments to the great offices of the government, my aim has been to combine geographical situation, and sometimes other considerations, with abilities and fitness of known characters."'2 The diversity of residence of his thirteen nominees to the Court shows that there, as in general, Washington "... prudently consulted geography in making his ... appointments." 3 That Washington consciously took the geographical factor into con- sideration when making judicial appointments was evidenced by a letter he wrote to Edmund Pendleton referring to a rumored vacancy on the Supreme Court. Washington said, "Whenever one does happen, it is highly probable that a geographical arrangement will have some atten- tion.. ."4 In a letter written March 7, 1796, to Alexander Contee Han- son, President Washington said in part, "... it would be inexpedient to take two of the Associate Judges from the same State. The practice has been (founded I conceive in sound policy) to disseminate them

*B.A., M.A., Ph.D., University of . Instructor in and Research Associate, Institute of Public Administration at University of . 1 Texas, admitted to the Union in 1845, ranks sixth in population, while In- diana, admitted in 1816, ranks twelfth. 2 Jared Sparks, (ed.), The Writings of , Vol. XI, p. 78 (1831). Washington nominated thirteen men to the Supreme Court, as fol- lows: of , of , of Massachussetts, Robert Harrison of , James Wilson of , John Blair of , of . of Maryland, of , again John Rutledge of South Carolina, again William Cushing of Massachussetts, of Maryland, and of . 3 Carl R. Fish, The Civil Service and Patronage, p. 8 (1921). ' Charles Warren, The Supreme Court in History, Vol. I, p. 118, 1922, citing Washington papers. MARQUETTE LAW REVIEW [Vol. 35

5 through the United States." Hence, one must agree that ". . . from the very beginning geography was considered an important factor in mak- 6 ing appointments to the United States Supreme Court." In two of his three Supreme Court nominations President followed the practice of selecting men from judicial circuits whose representation on the Court had been diminished. The exception was his choice of of Virginia as Chief Justice to replace Oliver Ellsworth of Connecticut. In this and later appointments to the center chair Presidents have paid relatively less attention to the geo- graphical factor than they have in selecting Associate Justices. Pi:esident Jefferson appointed men from circuits having no repre- sentatives on the Supreme Court-namely of South Carolina and Henry B. Livington of New York. Jefferson felt himself bound to do so, for he wrote, "The last judiciary system requiring a judge for each district, rendered it proper that he should be of the district. This has been observed in both the appointments to the supreme bench made by me. Where an office is local we never go out of the limits for the officer."7 When in 1807 Congress created a seventh circuit including , Tennessee, and ,. Jefferson nominated a resi- dent of the new circuit- of Kentucky. Space precludes a detailed recital of the extent to which succeeding Presidents adhered to the principle that each circuit be represented on the bench. Likewise, the details of successive circuit reorganizations, changes in the number of Supreme Court personnel, and other factors must be omitted. However, a few of the most significant developments deserve notice. The Civil War largely upset the normal effect of the geographical factor on judicial appointments. Lincoln hesitated a long time before naming Northerners to vacancies that in the ordinary course of events would have gone to Southerners but finally did so. 10 In 1869 Congress drastically curtailed circuit riding, thus eliminating one of the main reasons why Presidents had attempted in the past to provide that each circuit be represented on the bench and that each Justice be assigned to duty in the circuit in which he was a resident.

5 John C. Fitzpatrick (ed.), The Writings of George Washington, Vol. XXXIV, p. 488 (1931-39). 6Louis B. Boudin, Government by Judiciary, Vol. I, p. 152 (1932). 7 Paul L. Ford (ed.), The Writings of , Vol. VIII, pp. 496- 497 (1897). a 2 Stat. 420 (Feb. 24, 1807) amended 2 Stat. 477 (Mar. 22, 1808) and 2 Stat. 516 (Feb. 4, 1809). 9 For these facts see the author's unpublished doctoral dissertation, Appoint- ments to the Supreme Court of the United States, The Factors that Have Affected Appointments, 1789-1932, pp. 501-528 (U. of Calif. 1949). 10 In his message to Congress of December 3, 1861, he said, "I have been un- willing to throw all the appointments northward, thus disabling myself from doing justice to the South on the return of peace. . . ." See James D. Rich- 1951] SECTIONAL REPRESENTATION

In 1891 Congress completely relieved the Supreme Court Justices of the obligation of circuit riding.'1 They had been forced to ignore the practice for some years because of the press of work in Washington, D. C. As had been said, "... by 1890 the statutory duty of the justices to attend circuit was practically a dead letter."'12 Though the new legis- lation made the justices "competent to sit as judges of the of Appeals within their respective circuits,"'1 it was noted in 1927 that ".. . in recent years attendances on circuit are very rare."' 4 After Congress officially took cognizance of the fact that circuit duty was an impossibility, most Presidents felt little further need to recognize the principle that each circuit should have one of its residents on the bench of the Supreme Court. However, the factor of section representation still exerted some influence. There were 79 nominees to the highest bench prior to 1891. Of these 9 appointees were not replaced until after 1891. As to the 70 indi- viduals either simply nominated or actually appointed and replaced prior to 1891, 43 (61%) came from states located in the same circuit as that of their predecessors, while 27 (39%) did not. Subtracting the 9 incumbents from the other 50 nominations made since 1891, we dis- cover that 10 (24%) came from residences located in circuits identical to those of their predecessors, while 31 (76%) did not.'5 These figures indicate the sharply diminished influence of the sectional factor on Su- preme Court appointments. The figures with respect to the periods separated by the year 1891 would have contrasted even more pointedly had not the Civil War upset the normal practice of according weight to sectional considerations. During the years 1860-1870 inclusive, there were 11 nominees (exclud- ing Mr. Justice Field, who came from a newly created circuit). Only 4 (36%) came from states lying within the circuits of the men they succeeded, while 7 (64%) did not.' ardson (ed.), Messages and Papers of the Presidents, Vol. VI, p. 49 (1901). "26 Stat. 827 (Mar. 3, 1891). 12Felix Frankfurter and James M. Landis, The Business of the Supreme Court, p. 87 (1927). 1326 Stat. 827 (Mar. 3, 1891). '1 Frankfurter and Landis, op. cit., p. 78 n. 100. The same authors went on to note a few examples of attendances on circuit in the twentieth century. However, Roscoe Pound, Organization of Courts, 1940, p. 199 said, "But there is no longer more than a rare occasion for the circuit justice to sit in his allotted circuit." 1 Most writers on Supreme Court appointments have indicated that Lamar took White's place and that Van Devanter took Moody's place. However, a Table of Succession of the Members of the Supreme Court of the United States prepared by the Office of the Marshal of the Supreme Court, April 1, 1944, indicates that Van Devanter took White's place and Lamar took Moody's place. This succession would mean that since 1891 only nine indi- viduals had been appointed to the bench who came from the same circuits as those whom they replaced. 16 However, the circuit designations used in arriving at the figures above simply indicate the number of the circuit to which the state of residence of each MARQUETTE LAW REVIEW [Vol. 35

Most authorities agree that the geographical factor in Supreme Court appointments is no longer as strong as it was when the Justices actually performed circuit duty, but that it remains a factor to be con- sidered. One wrote that, "There has always been a sectional influence arising out of the fact that prior to 1869 the justices were generally expected to be chosen from the part of the country in which they did their circuit court duty, one justice being assigned to each circuit. Even after they were relieved of duty in the circuit courts the tradition of a sectional distribution of members of the Court has persisted. . . ."' An- other has said, "The geographical factor in Supreme Court appoint- ments has diminished in importance since the Justices no longer serve as circuit judges .... The Court has recently had three members at one time (Hughes, Stone, and Cardozo) from . This, how- ever, is not to say that it is a factor which may be ignored as it is of practical importance still in weighing candidacies."'18 Certain it is that the states never or seldom honored by having their residents named to the Supreme Court have not been quiet about voic- ing their disappointment. One author has pointed out that up to 1941 some twenty-two states had never had one of their citizens ele- vated to the nation's highest bench. He noted that those passed by in- cluded Texas, which was sixth ranking in population. This too in spite of the fact that 65% of the judges had come from states less populous. The same blank had been drawn by Indiana, , and which were 12th, 14th, and 19th respectively in population rankings.19 The same author complained that New York with 11, 8, Ohio 8, Pennsylvania 6, Virginia 5, Tennessee 5, Maryland 4, Kentucky 4, New Jersey 3, 3, 3, and South Carolina 3, consti- tuting only 12 states, had enjoyed 78% of the representation. Another author writing in 1942 was concerned that there was no Justice from west of the river. This had been the case since Justice Sutherland left the Court in 1938. He contended that geography should be taken into consideration, and the West be given a member on the Supreme Court because: (1) men are a product of their environments; (2) a Westerner would know Western problems; (3) the Court is well balanced only if truly representative of the entire country; and (4) such an appointment would make the hero worshippers of the West feel

Justice and his successor was assigned when the successor was appointed to the bench. It does not indicate to which circuit the Justice was assigned T for circuit duty-real or nominal. I Robert E. Cushman, The History of the Supreme Court in Resume, 7 Minn. L. Rev. 301 (1923). IsJohn P. Frank, The Appointment of Supreme Court Justices: Prestige, Prin- ciples and Politics, 1941 Wis. L. Rev. 175. 19 Graves, Whence Come the Justices, 4 Tex. B. J. 649 (1941). As noted supra, p. 1, President Truman by his appointments of Clark and Minton reduced the number of states never honored by two, so that today it is twenty. 1951] SECTIONAL REPRESENTATION better.20 Postmaster General Burleson wrote to President Wilson's secretary, Joseph Tumulty, on June 17, 1916, recommending Attorney General Gregory's nomination to the bench. He said in part in stressing the claims of Texas: An examination of the roster of those who have occupied places on the Supreme Bench will disclose that Alabama, Georgia, Kentucky, , Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia have each had from one to six members thereon. Texas was invited into the Union in 1-845. Since then Ten- nessee has had three citizens on the Court (justice McReynolds being properly chargeable to New York) to wit: Mr. Catron, Mr. Jackson, and Mr. Lurton. Georgia has also had three repre- sentatives thereon, viz: Mr. Wayne, Mr. Woods, and Mr. La- mar. Alabama has had two, Mr. McKinley and Mr. Campbell, and Maryland, Kentucky, Louisiana, Mississippi, and Virginia have had one each. Texas has had none. I submit these facts should be given some weight. The States of this Union now leading in population are New York, Pennsylvania, Illinois, Ohio, and Texas. The Supreme Court has had as members thereof representatives as follows: New York ...... 8 Pennsylvania ...... 5 Illinois ...... 2 Ohio ...... 6 Texas ...... 0 (none) Texas is the greatest State in this Union. Does she deserve such treatment? You answer must be, No.2 ' On December 10, 1909, President Taft wrote to Senator William Warner, acknowledging a letter enclosing a letter from Daniel Taylor, president of the Association of St. Louis, advising that though Missouri had been a State for eighty-eight years it had never had a Supreme Court Justice and expressing the hope that the President 22 would bear that fact in mind in filling the vacancy. However, it is equally true that states which have had many Su- preme Court justiceships come to take such a situation for granted and complain loudly whenever they are left unrepresented. A contributor to a magazine had the following observations to make with respect to a Court vacancy in 1895: The recent death of Justice Jackson of the United States Supreme Court offers an unexpectedly early opportunity for restoring the geographical equilibrium of our highest bench, 20 Edward Horton, What-No Western judge, 7 Calif. B. J. 318 (1942). 21 , Papers of , File VI, No. 76a, Supreme Court-re appointments to 1912-1918. 22Library of Congress, Papers of , the President's Letter Book, No. 9, p. 260 (November 29 to December 22, 1909). MARQUETTE LAW REVIEW [vql. 35 which has been disturbed since one of the nine judicial circuits was given three of the nine judges two years ago, and since a Louisianan a little later succeeded a New Yorker. John Jay of New York was appointed by Washington Chief Justice when the court was organized in 1789, and, except for interval of twelve years after his resignation to negotiate the treaty with in 1794, and the two years 1843 to 1845, the tribunal has had a representative of the Empire State continuously until 1893, the order of succession being Brockholst Livingston who served from 1807 to 1823; , 1923-1843; Samuel Nel- son, 1845-1872 , 1872-1882; , 1882-1893. The propriety of giving New York representation in this tribunal, on the ground of the exceptionally important interest, national as well as State, that center in this commonwealth and enter into suits arising here, has thus been acknowledged from the foundation of the government. Mr. Cleveland recognized the weight of these considerations when he sent to the Senate in 1893 the nominations of two New Yorkers, only to have them re- jected in succession, after which he named Senator White of Louisiana. The argument recurs with added force now that an- other appointment must be made. Neither the fourth (Maryland, the two , and the two Carolinas) nor the second (, Connecticut, and New York) had a representative. There can be no question where the choice should lie between these two. Indeed, there is gen- eral agreement among newspapers throughout23 the country that the appointee should come from New York. The unwillingness of many Presidents to select more than one Su- preme Court Justice from a given circuit or a single state has been-evi- denced by their statements and letters. President Grant responded to Secretary of State 's suggestion that he nominate Ed- wards Pierrepont, ". . that there was no vacancy upon the Supreme Bench to which Pierrepont could be appointed while Judge Nelson re- mained on the bench; that he would not wish to appoint two justices of that court from the same state.' 4 On December 4, 1909, President Taft wrote to John R. Freeman of Providence, , ac- knowledging Freeman's recommendation of Justice Savage of the Supreme Court of by saying, "As there are two judges from Massachusetts on the court, it is hardly likely that I can go to New for another.12 5 On July 25, 1910, Taft wrote to Simeon M. Johnson saying in part, "Ed Colston, I agree with you, is Supreme Court material, but in addition to there being one Ohio man on the Supreme Bench, there are three men from the sixth circuit now and 23 The Supreme Court Vacancy, 61 The Nation 129-130 (August 22, 1895). 24 , Hamilton Fish-The Inner History of the Grant Administra- tion, p. 304 (1936). 25 Library of Congress, Papers of William H. Taft, the President's Letter Book, No. 9, p. 138 (November 29-December 22, 1909). 1951] SECTIONAL REPRESENTATION this appointment would make four. You can see what objection might be made on that ground."' 2 6 On June 26, 1916, Homer Cummings wrote President Wilson recommending Justice George W. Wheeler of the Supreme Court of Errors of Connecticut and intimating that Wheeler would be considered a New York rather than a Connecticut ap- pointee. Wilson replied on June 30, 1916, saying in part, "I think the Attorney General and I both agree that Wheeler would be an admira- ble appointment, but I am not so sure as you seem to be that the ap- pointment would be considered a New York rather than a New Eng- land appointment. You see, there are two men from now on the Bench,--Brandeis and Holmes-and I am afraid it would be 'going some' to put another man on from New England."2'7 Of course not all Presidents felt bound to limit their choice of nominees to the circuit in which a vacancy occurred. President Polk noted in his diary on November 19, 1845, that he had told James Bu- chanan he did not feel constrained so to confine himself.m President Taft minimized the geographical factor in explaining to the two Penn- sylvania Senators why they should not feel too deeply disappointed that he had nominated of New Jersey, who was a resi- dent of a state belonging to the same circuit as Pennsylvania. Taft tried to show that Pitney's appointment would not prejudice the chances of Pennsylvanians being elevated to the Supreme Court.2 The approaches employed by those who wrote letters recommend- ing candidates for Supreme Court vacancies have on occasion been amusing. If the candidate came from a state or circuit that lacked a representative on the bench, that fact was greatly emphasized and the view put forward that the Supreme Court should be a representative institution." Thus, on July 24, 1811, A. J. Dalas wrote to Secretary of the Treasury saying in part: Poor Pennsylvania! Except yourself, who has been distin- guished by Federal favor? Local offices must have local occu- pants; but from the commencement of the Federal government, and particularly from the commencement of the Republican Ad- ministration, what citizen of Pennsylvania has been invited by the Executive to share in Federal honors? There are the excep- tions of Judge Wilson and Mr. Bradford, appointed by Presi-

26 Ibid., No. 17, p. 420 (June 23-August 3, 1910). 2 Library of Congress, Papers of Woodrow Wilson, File VI, No. 76a, "Su- preme Court-re appointments to 1912-1918." 2s Milo M. Quaife (ed.), The Diary of James K. Polk, Vol. I, p. 99 (1910). 29Library of Congress, Papers of William H. Taft, The President's Letter Book, No. 33, pp. 314-315, 324-325 (February 2-28, 1912). 30 The National Archives, Records of the Department of Justice, Appointment Papers, Supreme Court. The members of the bar of the seventh circuit sent in an undated petition stressing" the claims of the seventh circuit to an Asso- ciate Justiceship. Detailed statistics as to population, area, amount'of litiga- tion etc. were employed to press the claim. MARQUETTE LAW REVIEW [Vol. 35

dent Washington, but they are merely exceptions to my remark. Look at the judiciary establishment! There are seven judges. Four reside on the south of the Potomac. Two reside in Vir- ginia. The Attorney-General resides in . For the whole region beyond the Potomac, north-east, there are two judges.31 However, if the circuit or state already had a member, then it was claimed that geographical and sectional factors should be ignored in fill- 32 ing the vacant place. Opinions have differed with respect to the part the geographical factor should play in Supreme Court nominations. Some complain con- cerning appointments they feel have resulted in gross overrepresenta- tion of a given state or circuit. Hence, Edward T. Sanford's appoint- ment elicited the following criticism: Though there is no necessity for the Executive to be geo- graphically limited in making his selections for membership on the supreme bench it would seem fairer to the country as a whole-all other things being equal-if he would scatter his favors around a little more. It is perfectly patent that a State which already has a member of the Court is fully represented.

This might be different if a few of the States had a monopoly3 3 of judicial timber but no one believes that to be the case. Others are pleased that geographical considerations have not pre- cluded the selection of three Justices serving contemporaneously from a single city. Hence, it was said, "That geographical considerations have not been allowed to stand in the way of such appointments as Chief Justice Hughes, Associate Justice Cardozo and Associate Justice Stone is a distinct tribute to the independence of thought and action which dictated the appointments." 34 On the other hand, one of the exponents of the geographical factor, George Ticknor Curtis, said with respect to the appointment of Justice Campbell, "His selection afforded a strong illustration of the wisdom of making the Supreme Court in some sort a representative body in reference to the different divisions of the Union. More than once, cases which would have been wrongfully de- cided if decided by the judgment of the other members of the Bench, were given a right direction by his knowledge of the local law and usages of the States composing his Circuit. '35 Charles Warren recog- nized the geographical factor as a good one when he said, "Presidents, Sl , The Life of Albert Gallatin, p. 441 (1879). 32 This was particularly true of the letters recommending Benjamin Cardozo, since his nomination would give three places to New York. See: The Depart- ment of Justice, Personnel Files, Benjamin Cardozo. 33The New Justices of the Supreme Court, Va. Law Reg. 9 n.s., p. 127 (June, 1923). 34 Martin T. Manton, Historical Fragments Pertaining to the United States Su- preme Court, 66 U.S. L. Rev. 545 (1932). 35 Proceedings of the Bench and Bar of the Supreme Court of the United States -In Memoriam , pp. 23-24 (1889). 1951] SECTIONAL REPRESENTATION in selecting Judges, have been necessarily affected by geographical... considerations, since it has been desirable that the Court should be representative (so far as practicable) of the different sections of the country. . .. "36 One result of the fairly strict adherence in early years to the princi- ple that each circuit should have one of its residents upon the Supreme Court bench was the attempt by legislators to manipulate circuit re- organizations so as to further the chances of their particular candidates for vacancies. One student of the Court said: The circuit system as originally devised had contemplated that the judges would rotate in such a manner that every judge would, at some time or other, hold court in every part of the country. The growth of sectionalism had early changed this and for many years prior to the Civil War each judge had been as- signed to a particular circuit which circuit had to include the state of which he was a citizen. It was a principle which led to considerable political jockeying in the division of the country into circuits as well as to the impossibility of appointing two members of the Supreme Court from the same state.3 7 The influence of circuit composition on Supreme Court appoint- ments was brought to the forefront by the successful struggle of the friends of Samuel F. Miller to create a trans-Mississippi circuit so that Miller would not have to compete with candidates from Illinois. President Lincoln had asked Congress to rearrange the western circuits, and this it proceeded to do. It was slow work. One author wrote, ". . . the method of grouping the Western and Southwestern States became a subject of warm controversy in Congress; the House and the Senate adopted different plans; and it was not until the very end of the session, that on July 5, 1862, an agreement was reached and an Act passed reorganizing the Court." 38 The reason for the delay was, of course, that the grouping of states into circuits would determine geographic availability of aspirants to the Court. Hence, ". . . while senators and congressmen talked geography, everyone was thinking of personalities. ' 39 The extent to which the candidacies of aspirants for the Supreme Court were bound up with circuit reorganization is re- vealed by the- following entry of March 26, 1862, in the diary of At- torney General : Today, at my office-and tonight at my house, again had long talk, with judge S(wayne) about the filling of the va(ca)nt seats on the Sup(rem)e bench. He thinks that a very strenuous

36 Warren, op. cit., Vol. I, p. 2. 37Kenneth B. Umbreit, Our Eleven Chief Justices, 2d edition, p. 276 (1938). 3' Warren, op. cit., Vol. III, p. 101. 39 Charles Fairman, Mr. Justice Miller and the Supreme Court, 1862-1890, p. 43 (1939). MARQUETTE LAW REVIEW [Vol..35

effort is making to get C. B. Smith appointed, and that the effort is almost crowned with success - That there is a bill pending to gerrymander the Circuits to suit - so as to give Smith a circuit without interf erring (sic) with Browning -nobody it (I) think objects to Browning - He is a proper man- Note (.) I have warned the Prest to be on his guard.40 In early June, 1862, Representative William Kellog of Illinois stated to the House: "I fear that too many mantles for Supreme Court judges have already been cut out, and made up. If it were not for that, there 4 1 would be little trouble in arranging the States in compact circuits." Among the leading aspirants for the two existing vacancies on the bench were Senator Orville Browning, David Davis, and Thomas Drummond of Illinois, Secretary of the Interior Caleb Smith of In- diana, and Samuel F. Miller of Iowa. Miller's supporters knew he would have to compete with Browning, Davis, and Drummond if Iowa were placed in the same circuit with Illinois, hence Senator James Grimes and Representative James Wilson of Iowa fought a hard, and successful, ". . . legislative battle in order to force creation of a circuit composed of Iowa, , Missouri, and Kansas. 4 2 They and others had done much campaigning for Miller, and they felt he would be nominated if they could secure a trans-Mississippi circuit. As has already been noted, after 1869 when circuit riding was cur- tailed, the importance of having one resident of each circuit steadily declined. Apparently other considerations then became more control- ling. One author has told us concerning the years 1880-1925: During the period, the theory of passing the judgeships around among the several states was not practiced with even an amateurish consistency. Twenty-nine states had no citizens ap- pointed to the Court. On the other hand, Ohio had six, New York five, and Massachusetts and Tennessee had four each. What reason can be given in explanation of this feature? As a matter of fact, the Presidents have not always selected judges from states domitaated by the party in power. The Republicans, Hayes and Taft, nominated Woods and Lamar, both of Georgia. Surely it cannot be contended that by these appointments the Republicans hoped to gather any considerable harvest of votes. But, on the other hand, did Ohio, New York, Massachusetts, and Tennessee receive their extraordinary number of appointments because they were closely contested states and were, for this reason, legitimate appointing grounds for both parties? During this period these four states received only one less appointment

40Howard K. Beale (ed.), The Diary of Edward Bates, 1859-1866, p. 244 (1933). 41 The Congressional Globe, 37th Congress, 2d Session, p. 2564, June 4, 1862. See also Fairman, op. cit., p. 43 and David M. Silver, The Supreme Court During the Civil War, p. 7 (1940). 42 Silver, op. cit., p. 7. 1951] SECTIONAL REPRESENTATION

than the other 43 forty-four states combined. This feature seems significant. One must say by way of summarizing the geographical or sectional influence that it was a factor frequently respected prior to the Civil War when each Justice performed circuit duty. Since 1869 and par- ticularly since 1891, it has been adhered to much less often. Though some outstanding appointments such as that of Cardozo were possible only if geography was ignored, the principle that the Court's personnel should be drawn from various parts of the United States still operated to a limited extent. One authority disapproves of this sectional princi- ple and has said, "Such a policy limits the range of choice and may prevent the selection of the men best fitted for the office." A. H. Carl- son in a letter to President Cleveland written February 20, 1894, said in part, "There is nothing in the theory or practice about staying in the circuit. While Congress makes the circuits, the court assigns the judges."' 5 Yet one can sympathize with the claims and pretensions of a judicial circuit that had no resident on the Court for a period of over seventy years48 and of the nineteen states which have never had one of their citizens nominated.4 7 The answer seems to lie with the policy ex- pressed by , "It is manifest that geographical considerations should not control at the expense of exceptional fitness in determining appointments to the Supreme Court. Yet the confidence of the country should be maintained by selections which so far as practicable will represent all parts of the United States.148 Probably the closest student of the geographical aspect of Supreme Court ap- pointments has said, "No one can definitely calculate the exact influ- ence that geography . . . has had upon the selection of judicial per- 49 sonnel." However, one must agree that ". . . some men achieve the highest place in the nation's judiciary by accident of residence, while others are denied it for the same reason." 50

43Cortez A. M. Ewing, Geography and the Supreme Court, 11 Southwestern Pol. and Soc. Sci. Q. 28-29 (June, 1930). 44 Cushman, op. cit., p. 45 301. Library of Congress, Papers of , Vol. 293 (February 18, 1894 -March 5, 1894). 48 From the 'New South' to the Supreme Court, 105 Lit. Dig. 12 (April 5, 1930). 47 Twenty States have never had one of their citizens appointed. They are: , Arkansas, Colorado, Delaware, , Idaho, Missouri, , Nebraska, Nevada, New , North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Vermont, Washington, West Virginia, and Wisconsin. President Grant nominated George H. Williams of Oregon for Chief Justice in 1873 but was forced to withdraw the nomination due to Senatorial op- position. The other nineteen States above have never even had a citizen nominated. "The 9 Supreme Court of the United States, Columbia U. (1928), p. 44. 4 Cortez A. M. Ewing, The Judges of the Supreme Court, 1789-1937, p. 59 (1938). 50 Wesley McCune, The Nine Young Men, p. 200 (1947). MARQUETTE LAW REVIEW [Vol. 35

The author has prepared a chart 5' which includes the name of each man nominated to the Supreme Court to date, the President making the nomination, the year in which the nomination was made, the state of residence of the nominee at the time he was nominated, and the same data concerning his successor. In each case it has been indicated whether at the time the successor or intended successor was nominated, his resi- dence placed him within the same judicial circuit as his predecessor by a Y for yes or an N for no. From this the reader may obtain some in- formation concerning presidential attention to the geographical factor in the making of Supreme Court nominations.

Year President of Residence Identical Name of Nominee Making Nomi- of Nominee Circuits Nomination nation 1. John Jay Washington 1789 N.Y. N John Rutledge Washington 1795 S.C. (Rejected) 2. John Rutledge Washington 1789 S.C. N Thomas Johnson Washington 1791 Md. 3. William Cushing Washington 1789 Mass. Y Madison 1811 Mass. 4. Robert H. Harrison Washington 1789 Md. N (Declined) James Iredell Washington 1790 N.C. 5. James Wilson Washington 1789 Pa. Y J. Adams 1798 Va. 6. John Blair Washington 1789 Va. Y Samuel Chase Washington 1796 Md. 1 James Iredell Washington 1790 N.C. Y J. Adams 1799 N.C. B. Thomas Johnson Washington 1791 Md. Y William Paterson Washington 1793 N.J. 9. William Paterson Washington 1793 N.J. N Henry B. Livingston Jefferson 1806 N.Y. 10. John Rutledge Washington 1795 S.C. N (Rejected) 11. William Cushing Washington 1796 Mass. N (Declined) 12. Samuel Chase Washington 1796 Md. Y Gabriel Duval Madison 1811 Md. 13. Oliver Ellsworth Washington 1796 Conn. N John Marshall J. Adams 1801 Va. 14. Bushrod Washington J. Adams 1798 Va. N Jackson 1830 Pa. 15. Alfred Moore J. Adams 1799 N.C. N William Johnson Jefferson 1804 S.C. 16. John Jay J. Adams 1800 N.Y. Y (Declined) 17. John Marshall J. Adams 1801 Va. N Roger B .Taney Jackson 1835 Md. 18. William Johnson Jefferson 1804 S.C. Y James M. Wayne Jackson 1835 Ga. 19. Henry B. Livingston Jefferson 1806 N.Y. Y

51 The chart is not arranged in the same manner as the Table of Succession of the Members of the Supreme Court of the United States prepared by the Office of the Marshal of the Supreme Court, April 1, 1944. Aside from the difference with respect to Moody's successor noted supra note 15, other differ- ences include the successors to Daniel and Campbell. SECTIONAL REPRESENTATION

Year President of Residence Identical Name of Nominee Making Nomi- of Nominee Circuits Nomination nation Smith Thompson Monroe 1823 N.Y. Thomas Todd Jefferson 1807 Ky. Y J. Q. Adams 1826 Ky. Levi Lincoln Madison 1811 Mass. Y (Declined) Madison 1811 Conn. N (Rejected) John Q. Adams Madison 1811 Mass. Y (Declined) Madison 1811 Joseph Story Polk 1845 Mass. Y Madison 1811 N.H. Gabriel Duval Jackson 1836 Md. N Philip P. Barbour Monroe 1823 Va. Smith Thompson Tyler 1845 N.Y. Y N.Y. Robert Trimble J. Q. Adams 1826 Ky. Y John McLean Jackson 1829 Ohio John J. Crittenden J. Q. Adams 1828 Ky. Y (Postponed) John McLean Jackson 1829 Ohio Y Noah H. Swayne Lincoln 1862 Ohio Henry Baldwin Jackson 1830 Pa. Y Robert C. Grier Polk 1844 Pa. James M. Wayne Jackson 1835 Ga. N Joseph P. Bradley Grant 1870 N.J. Roger B. Taney Jackson 1835 Md. Y (Postponed) Roger B. Taney Jackson 1835 Md. N Salmon P. Chase Lincoln 1864 Ohio Philip P. Barbour Jackson 1835 Va. Y Peter V. Daniel Van Buren 1841 Va. William Smith Jackson or 1837 Ala. Y (Declined) Van Buren Jackson or 1837 Tenn: Y Van Buren Act of July 23, 1866, 14 Stats. 209 reduced Court by three members

John McKinley Van Buren 1837 Ala. John A. Campbell Pierce 1853 Ala. Peter V. Daniel Van Buren 1841 Va. David Davis Lincoln 1862 Ill. John C. Spencer Tyler 1844 N.Y. (Rejected) Reuben H. Walworth Tyler 1844 N.Y. (Withdrawn) Tyler 1844 Pa. (Postponed) Edward King Tyler 1845 Pa. (Withdrawn) Samuel Nelson Tyler 1845 N.Y. Ward Hunt Grant 1872 N.Y. John M. Read Tyler 1845 Pa. (Not Acted Upon) George Woodward Polk 1845 Pa. (Rejected) Levi Woodbury Polk 1845 N.H. Benjamin R. Curtis Fillmore 1851 Mass. Robert C. Grier Polk 1846 Pa. William Strong Grant 1870 Pa. Benjamin R. Curtis Fillmore 1851 Mass. Buchanan 1857 Me. MARQUETTE LAW REVIEW [Vol. 35

Year Name of Nominee President of Residence Identical Making Nomi- of Nominee Circuits Nomination nation Edward Bradford Fillmore 1852 La. Y (Not Acted Upon) George Badger Fillmore 1853 N.C. N (Postponed) William Micou Fillmore 1853 La. Y (Not Acted Upon) John A. Campbell Pierce 1853 Ala. N Samuel F. Miller Lincoln 1862 Iowa Nathan Clifford Buchanan 1857 Me. Y Arthur 1881 Mass. Jeremiah S. Black Buchanan 1861 Pa. N (Not Acted Upon) Noah H. Swayne Lincoln 1862 Ohio Y Garfield 1881 Ohio Samuel F. Miller Lincoln 1862 Iowa N Henry B. Brown Harrison 1890 Mich. David Davis Lincoln 1862 Ill. N John M. Harlan Hayes 1877 Ky. Stephen J. Field Lincoln 1863 Calif. Y Joseph McKenna McKinley 1897 Calif. Salmon P. Chase Lincoln 1864 Ohio Y Morrison R. Waite Grant 1874 Ohio Johnson 1866 Ohio N (Not Acted Upon) Ebenezer R. Hoar Grant 1869 Mass. N (Rejected) Edwin M. Stanton Grant 1869 Pa. Y (Died) William Strong Grant 1870 Pa. N William B. Woods Hayes 1880 Ga. Joseph P. Bradley Grant 1870 N.J. Y George Shiras Harrison 1892 Pa. Ward Hunt Grant 1870 N.Y. Y Samuel Blatchford Arthur 1882 N.Y. George H. Williams Grant 1873 Ore. N (Withdrawn) Grant 1874 Va. N (Withdrawn) Morrison R. Waite Grant 1874 Ohio N Melville W. Fuller Cleveland 1888 Ill. John M. Harlan Hayes 1877 Ky. N Mahlon Pitney Taft 1912 N.J. William B. Woods Hayes 1880 Ga. Y L. Q. C. Lamar Cleveland 1887 Miss. Stanley Matthews Hayes 1881 Ohio Y (Not Acted Upon) Stanley Matthews Garfield 1881 Ohio N David J. Brewer Harrison 1889 Kansas Horace Gray Arthur 1881 Mass. Y Oliver W. Holmes T. Roosevelt 1902 Mass. Arthur 1882 N.Y. Y (Declined) Samuel Blatchford Arthur 1882 N.Y. N Edward D. White Cleveland 1894 La. L. Q. C. Lamar Cleveland 1887 Miss. N Howell E. Jackson Harrison 1893 Tenn. Melville W. Fuller Cleveland 1888 Ill. N Edward D. White Taft 1910 La. David J. Brewer Harrison 1889 Kansas N Charles E. Hughes Taft 1910 N.Y. Henry B. Brown Harrison 1890 Mich. N William H. Moody T. Roosevelt 1906 Mass. 1951] SECTIONAL REPRESENTATION

Year President of Residence Identical Name of Nominee Making Nomi- of Nominee Circuits Nomination nation George Shiras Harrison 1892 Pa. N William R. Day T. Roosevelt 1903 Ohio Howel E. Jackson Harrison 1893 Tenn. N Rufus W. Peckham Cleveland 1895 N.Y. William B. Hornblower Cleveland 1893 N.Y. Y (Rejected) Wheeler H. Peckham Cleveland 1894 N.Y. Y (Rejected) Edward D. White Cleveland 1894 La. Y Joseph R. Lamar Taft 1910 Ga. Rufus W. Peckham Cleveland 1895 N.Y. N Horace H. Lurton Taft 1909 Tenn. Joseph McKenna McKinley 1897 Calif. N Harlan F. Stone Coolidge 1925 N.Y. Oliver W. Holmes T. Roosevelt 1902 Mass. N Benjamin N. Cardozo Hoover 1932 N.Y. William R. Day T. Roosevelt 1903 Ohio N Harding 1922 Minn. William H. Moody T. Roosevelt 1906 Mass. N Taft 1910 Wy. Horace H. Lurton Taft 1909 Tenn. Y James C. McReynolds Wilson 1914 Tenn. Edward D. White Taft 1910 La. N William H. Taft Harding 1921 Conn. Charles E. Hughes Taft 1910 N.Y. N John H. Clarke Wilson 1916 Ohio Willis Van Devanter Taft 1910 Wy. N Hugo L. Black F. D. Roosevelt 1937 Ala. Joseph R. Lamar Taft 1910 Ga. N Louis D. Brandeis Wilson 1916 Mass. Mahlon Pitney Taft 1912 N.J. N Edward T. Sanford Harding 1923 Tenn. James C. McReynolds Wilson 1914 Tenn. N James F. Byrnes F. D. Roosevelt 1941 S.C. Louis D. Brandeis Wilson 1916 Mass. N William 0. Douglas F. D. Roosevelt 1939 Conn. John H. Clarke Wilson 1916 Ohio N Harding 1922 William H. Taft Harding 1921 Conn. Y Charles E. Hughes Hoover 1930 N.Y. George Sutherland Harding 1922 Utah N Stanley F. Reed F. D. Roosevelt 1940 Mich. Pierce Butler Harding 1922 Minn. N F. D. Roosevelt 1940 Mich. Edward T. Sanford Harding 1923 Tenn. N Owen J. Roberts Hoover 1930 Pa. Harlan F. Stone Coolidge 1925 N.Y. Y Robert H. Jackson F. D. Roosevelt 1941 N.Y. Charles E. Huhes Hoover 1930 N.Y. Y Harlan P. Stone F. D. Roosevelt 1941 N.Y. John J. Parker Hoover 1930 N.C. N (Reected) Owen J. Roberts Hoover 1930 Pa. N Harold H. Burton Truman 1945 Ohio Benjamin N. Cardozo Hoover 1932 N.Y. N F. D. Roosevelt 1939 Mass. Huo L. Black F. D. Roosevelt 1937 Ala. Inc. Stanley F. Reed F. D. Roosevelt 1938 Ky. Inc. Felix Frankfurter F. D. Roosevelt 1939 Mass. Inc. William 0. Douglas F. D. Roosevelt 1939 Conn. Inc. Frank Murphy F. D. Roosevelt 1940 Mich. N Tom C. Clark Truman 1949 Tex. MARQUETTE LAW REVIEW [Vol. 35

Year President ot Residence Identical Name of Nominee Making Nomi- of Nominee Circuits Nomination nation Harlan F. Stone F. D. Roosevelt N.Y. N Fred M. Vinson Truman Ky. James F. Byrnes F. D. Roosevelt S.C. N Wiley B. Rutledge F. D. Roosevelt Iowa Robert H. Jackson F. D. Roosevelt N.Y. Inc. Wiley B. Rutledge F. D. Roosevelt Iowa N Sherman Minton Truman Ind. Harold H. Burton Truman Ohio Inc. Fred M. Vinson Truman Ky. Inc. Tom C. Clark Truman Tex. Inc. Sherman Minton Truman Ind. Inc. MARQUETTE LAW REVIEW

Vol. 35 SUMMER, 1951 No. 1

EDITORS Editor-in-Chief EUGENE F. KOBEY Camment Editor PATRICIA MAHONEY Recent Decision Editor FRANK W. HAMMETT LAW REVIEW BOARD PAUL BINZAK JOHN A. FORMELLA ROBERT F. BODEN JAMES E. HARPSTER RICHARD P. BUELLESBACH EMIL SEBETIC IRVING W. ZIRBEL STAFF JAMES W. ANGERMEIER LOUIS GILBERT LAWRENCE J. BINDER ROBERT C. KOCH DEXTER BLACK JAMES KOENEN JEROME J. DORNOFF HUGH O'CONNELL HIBBARD ENGLER THO.MAS PATTERSON CLINTON FINNEGAN JOSEPH F. SCHOENDORF JOHN J. WITTAK Advertising and Circulation Manager JAMES A. HEMMER Faculty Adviser LEO W. LEARY "MEMBER, NATIONAL CONFERENCE OF LAW REVIEWS" 48@